Thangavel vs The Superintending Engineer

This appeal has been filed against the dismissal of O.S.No.15 of 2007, by the learned Principal District Judge, Pudukkottai, by judgment, dated

30.09.2009.

The plaintiffs are the appellants. The plaintiffs had filed O.S.No.15 of 2007, seeking compensation for the death of their 12 years old son, by

electrocution. In the suit, they had sought a judgment and decree for a sum of Rs.12,10,000/- (Rupees Twelve Lakhs Ten Thousand only). They

had instituted the suit as indigent persons. The suit was dismissed. This appeal has also been presented by them as indigent persons.

It is the case of the plaintiffs that on 07.11.2003, their son, Pandi alias Pandithurai, aged about 12 years, had died due to electrocution by

stepping on a cut live wire, when he was going to have his bath at around 08.00 a.m. along with his friends at Nainankollai Village, in the field of

Ramalingam, where, there were banana plantations. While going to have his bath, the said Pandi alias Pandithurai, stepped on a cut live wire, which

was a High Tension wire and suffered electrocution and died on the spot itself. He was taken to the Government Hospital and was declared as

''brought dead''. In this connection, a First Information Report was also preferred with the local Police Station. The body of the deceased boy,

who died owing to electrocution, was also handed over to the Doctors, who conducted the post-mortem and also gave a report. The plaintiffs

sought compensation from the defendants, who are the Superintending Engineer, Assistant Engineer and Junior Engineer of the Electricity Board,

claiming that because of their negligence, the High Tension wire was lying unattended in the field and that a duty and responsibility was cast upon

the defendants to take care regarding any live cut wire. The plaintiffs also stated that the deceased was their only son and even though he was aged

about 12 years and was studying in 5th Standard, he used to provide an income of Rs.1,000/- (Rupees One Thousand only) to the family. He also

looked after his two sisters. Claiming that the death of their son is unfortunate and they had to incur financial loss and also loss of future earnings,

future care, love and affection, the suit had been filed as stated above, claiming a sum of Rs.12,10,000/- (Rupees Twelve Lakhs Ten Thousand

only) as compensation together with interest and costs.

The third defendant filed a written statement which was adopted by the defendants 1 and 2. In the said written statement, the third defendant

denied that the death of the son of the plaintiffs, namely, Pandi alias Pandithurai was due to the negligence of the defendants. The defendants put up

a new case stating that one Mariyappa Konar was cutting the plantains from the banana trees and at that time, he accidently cut the overhead wire,

which fell on the neighbouring tree and caused electric sparks. The said Mariyappa Konar, fled away from the scene. The deceased came to the

said garden to pluck plantains and got into contact with the cut electric wire and owing to that electric shock, he died. The defendants, therefore,

stated that they were not negligent for the live wire being cut or the live wire being left unattended. They stated that the complaint was not given by

Mariyappa Konar, regarding the presence of live cut wire in the field. They have further stated that the deceased should have taken more care and

he died, while trying to pluck the plantains and the plaintiffs have no cause of action as against the defendants. They have further stated that if at all

the plaintiffs seek compensation, they should seek compensation only against the said Mariyappa Konar.

The parties went to trial on the basis of rival pleadings. The learned Principal District Judge, Pudukkottai framed three issues for consideration,

namely, 1.Whether the plaintiffs are entitled to the compensation amount of Rs.12,10,000/- (Rupees Twelve Lakhs Ten Thousand only) from the

defendants? 2.Whether the electric wire was cut due to the act of Mariyappa Konar? 3.To what relief, the plaintiffs are entitled?

During trial, the plaintiffs examined three witnesses and the defendants examined one witness. The plaintiffs also marked three documents. The

first plaintiff who was the father of the deceased Pandi alias Pandithurai was examined as P.W.1. During his evidence, P.W.1. Thangavel, had

stated about the death of his son, on 07.11.2003 due to electrocution and about the fact that the police complaint was given and also produced

and identified the copy of the First Information Report as Ex.A.1; the Death Certificate of the deceased Pandi @ Pandithurai as Ex.A.2 and the

copy of the Post- Mortem Certificate as Ex.A.3. The plaintiffs also examined Thiru.Rajendran, as P.W.2, who also spoke about the incident and

Thiru.Sasikumar, as P.W.3, who stated that he accompanied the deceased Pandi alias Pandithurai, while they were going to have their bath and at

that time, due to electrocution, the incident happened, leading to the death of the deceased Pandi alias Pandithurai.

On the side of the defendants, the Junior Engineer of the Electricity Board, namely, Thiru.Senthilkumar was examined as D.W.1. He gave his

chief examination, on the line of the written statement filed on behalf of the defendants, denying the liability and also the fact that the defendants

were responsible for the death of the deceased, because of their negligence. The defendants did not mark any documents.

On considering all the oral and documentary evidence, the learned Principal District Judge, Pudukkottai, dismissed the suit, primarily holding that

the plaintiffs have not established that the deceased died, as a direct result of the negligence of the defendants. The learned Principal District Judge

further held that the plaintiffs have not impleaded the said Mariyappa Konar, neither as a defendant, nor did they produce him as a witness. The

learned Principal District Judge accepted the case of the defendants that they were not negligent in their duties and therefore, held that the plaintiffs

are not entitled for any compensation.

Challenging the dismissal of their suit, the plaintiffs have filed this appeal.

The main points which arise for determination in this appeal are : 1.Whether the death of the son of the appellants was because of the

negligence of the respondents in not maintaining proper care and attention over the electric wires, over which, they are the sole custodians ?

2.Whether the respondents, who are the defendants in the suit, have a greater responsibility to the general public since they come under the

definition of ""State""? 3.Whether, if the defendants are held to be liable for the death of the deceased, Pandi alias Pandithurai, what is the quantum

of compensation that can be granted by this Court ?

Primarily, this Court has to determine, whether the appellants have made out their case to seek damages as compensation from the

respondents.

Point No.1: The appellants are husband and wife. On the date of institution of the suit, they were aged 45 and 40 years respectively. The

deceased Pandi alias Pandithurai, who was their son was aged around 12 years on the date of his unfortunate death on 07.11.2003. The

appellants did not have any other son. They had two daughters. They were the residents of Alangudi Taluk, Nainankollai village in Pudukottai

district. They had instituted the suit as indigent persons. In the order, dated 03.08.2007, in P.O.P.No.63 of 2004, while enquiring into the

economic condition of the appellants, the learned Principal District Judge, Pudukkottai had found that there was no evidence to show that the

appellants had agricultural land either as owners or as cultivating tenants. After having considered all the aspects, the learned Principal District

Judge had granted permission to the appellants to institute the suit as indigent persons. This fact is stated to show that the appellants were

depending during their future on the well being and prosperity of their son. Unfortunately, their son died on 07.11.2003, when he was just 12 years

old.

In this connection, the circumstances leading to the death of their son, Pandi alias Pandithurai will have to be examined. It is the case of the

appellants, both in their plaint and in their evidence in the chief examination that on 07.11.2003, when their son was going across to have his bath,

he came into contact with a cut live electric wire on the ground and unknowingly stamped it and thereby, he was electrocuted causing his death.

Nobody knew how the wire was cut and how it came to be lying on the ground. The defendants had given an explanation for this. They have

stated in their written statement that one Mariyapa Konar was cutting plantains from the banana trees and at that time, his knife cut the over head

High Tension electric wire which fell down on an other banana tree causing sparks to be lit up. Immediately, the said Mariyappa Konar ran away

from the place. Later, the deceased Pandi alias Pandithurai came to the said place to pluck plantains. When he tried to do that, his hand touched

the electric wire and he died.

Now, from an analysis of the evidence regarding these two directly contradictory versions, this Court will have to determine, which is more

probable. It is a fact that the son of the appellants died of electric shock. This is established by Ex.A1, which is the First Information Report given

to the police. It is further established by Ex.A3, which is the Post-Mortem Certificate issued by the Doctor. In Ex.A.3 the Post-Mortem Certificate

three burn injuries are found, namely, one on the left leg ankle, the second on the left leg knee, and the third on the left backside shoulder. There

will be burn injuries on the left leg ankle only if a live wire had been stamped by the person. The first contact of the electric shock will be on the leg,

actually on the lower leg, the ankle. From the leg lower portion, namely, the ankle, the shock will move upwards throughout the body. It has to first

cross the knee, where there is a bone joint. Then, it has to go to the spinal cord and when it reaches the spinal cord, it will affect the heart causing

instantaneous death. On the other hand, if the death had occurred while plucking the plantain from the banana tree, the point of injury of the electric

shock would be on the palm or wrist of the hand. From there, the electric shock will move to the shoulder and then affect the heart, causing death.

Again, the two versions given by the appellants and by the respondents will have to be compared.

According to the appellants, their son died when he stamped on the cut live electric wire. According to the respondents, the boy died when he

tried to pluck plantains from the banana tree. A perusal of Ex.A3-Post-Mortem Certificate reveals that there are no burn injuries on the hand. But,

there is a burn injury on the left leg ankle. Consequently, the leg was the first place of bodily contact with the cut live electric wire. In Ex.A3-Post-

Mortem Certificate, it has also been given that there is a burn injury on the left knee. This is consistent with electrocution by contact with the leg.

The shock spread upwards. The final point is at the left back shoulder through the spinal cord and that would affect the heart, which is on the left

side of the chest.

In https://en.m.wikipedia.org/wiki/Electrocution, under the article of an ''Electric Shock'' it had been given that ""The health hazard of an electric

current flowing through the body depends on the amount of current and the length of time for which it flows, not merely on the voltage. However, a

high voltage is required to produce a high current through the body. The severity of a shock also depends on whether the path of the current

includes a vital organ. Death can occur from any shock that carries enough sustained current to stop the heart."" In this case also the entry point of

the electric shock is on the ankle of the left leg and it had travelled up to the shoulder, indicating paralysing the functioning of the heart.

Consequently, the version given by the appellants that the boy died by stamping on the cut live electric wire is more probable and I hold that

the son of the appellants, namely, Pandi alias Pandithurai, aged 12 years, died of electrocution and the first point of contact was the left leg, when

he stamped on the cut live electric wire. This further implies that the cut live electric wire which was supposed to be going over head had been cut

and was lying on the ground. The respondents gave an explanation as to how the wire was cut. According to them, a person called, Mariyappa

Konar was cutting the bananas from the plantain trees and at that time, his knife cut the over head High Tension electric wire causing it to fall on the

another banana tree. However, the fact that the electric wire was on the banana tree has been established as a false statement, since the boy has

stamped on the cut live electric wire when it was lying on the ground.

Even otherwise, according to the respondents, the wire was at a height of 20 to 25 feet. They further stated that a banana tree would also

grow upto 20 to 25 feet. Actually, a banana tree grows to a maximum of 10 to 12 feet as is given in the literature provided in the website of

National Horticulture Board in nbb.gov.in>report_file>BANANA. The statement of the respondents is also not probable because, a banana tree

cannot be climbed by any person. This is common knowledge. No person of average height, even if Mariyappa Konar is an extraordinarily tall

person and had a knife with his hands stretched upwards, could ever reach 25 feet of height and mistakenly cut an electric wire at a height of 20 to

25 feet. In fact he could not even have cut bananas from the tree, if they were at that height. Therefore, the version of the respondents that while

trying to cut banana from the plantain tree, Mariyappa Konar cut the electric wire is held to be untrue. The fact that remains is that the electric wire

was cut and was lying on the ground. The negligence for this occurrence has to be fixed only on the respondents. There is a strict liability imposed

on the Government, particularly, on the State towards each and every citizen that every property of the State should be taken care of and should

not result in the injury or death of an individual or loss to property of an individual.

In this case, the Electricity Board has a primary duty to see and to take care that the electric wires, particularly, electric wires which run over

the fields are not cut. If they had been cut, knowledge would certainly reach the local Electricity Board, because, there would be no flow of current

from one point to another point. There would be disruption in electricity supply. Immediately, a duty is cast on the respondents to rush and find out

where the electric wire was cut and rectify the problem. This must be done urgently, because, till the point, where the live wire was cut, electricity

will flow and when an electric wire is cut, it falls on the ground and if the ground is a pathway, there is a strong possibility of people walking across

the pathway and there is a further strong possibility of someone stamping on the cut live electric wire resulting in death due to electrocution.

It is also a further fact that electrocution by a live High Tension wire will certainly cause death. In this case, the appellants have stated that the

electric wire which was cut and had fallen on the field is a High Tension wire. This is a very serious aspect, since a minute contact by the naked

flesh with a High Tension wire, would cause severe electric shock and in all cases, will lead to death. It is to be remembered that the deceased

boy, Pandi alias Pandithurai, was aged just 12 years. Consequently, he did not have the physical strength to withstand any electric shock from a

High Tension wire and therefore, viewed from any angle, I hold that the death of the son of the appellants, Pandi alias Pandithurai, was a direct

result of the electric wire being cut and the said electric wire was not immediately repaired by the respondents thereby, leading to the death by

electrocution of an young boy.

In this case, I disagree with the findings of the learned Principal District Judge, PudukKottai, who had negatived the case of the plaintiffs.

Reversing the said conclusion of the learned Principal District Judge, PuduKkottai, I hold that the death of the son of the appellants was due to the

negligence of the respondents and not because the electric wire was cut by Mariyappa Konar as stated by the respondents. I answer the point

accordingly.

Point No.2:- In the decision of the Hon''ble Supreme Court reported in 2002-2-SCC-162 (M.P.Electricity Board Vs. Shail Kumari and

others), it had been held as follows:-

It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the

energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer

is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension

the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would

not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody

committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the

managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the

public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra

duty to chalk out measures to prevent such mishaps.

Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life,

is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of

the managers of such undertakings. The basis of such liability i.e. the foreseeable risk inherent in the very nature of such activity. The liability cast on

such person is known, in law, as ""strict liability"". It differs from the liability which arises on account of the negligence or fault in this way i.e. the

concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that

which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is

not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking

precautions.

In 1920 AC 662:89LJPC 99:123 LT 1 (Quebec Railway Light, Heat and Power Company Ltd. Vs. Vandry), the Privy Council had held as

follows:-

The Company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cable were

disrupted on account of violent wind and hight tension current found its way through the low-tension cable into the premises of the respondents

was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of

the Board regarding the live wire lying on the road.

Rule 91 of the Indian Electricity Rules 1956, which has also been adopted by the Tamil Nadu Electricity Board reads as follows:-

91.Every overhead electric line erected over any part of a street or other publice place or any factory or mine or any consumer''s premises shall

be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks.

The above rules had been further upheld by the Madras High Court in 2008-4-LW-289 (Chairman, Tamil Nadu Electricity Board and another Vs.

Lalitha and two others).

In AIR-1984-Madras-201 (Nirmal Vs. Tamil Nadu Electricity Board), this court had held as follows:- ""Over head electric wires carrying

heavy load of electric energy are highly dangerous, and if any human being or animal comes into contact with the same, the consequences are fatal.

Hence, great care and caution are expected of the Electricity Board in laying, installing and maintaining overhead wire so that the wire do not fall

down. If such a thing happens a prima facie inference can be drawn that, there has been carelessness or negligence on the part of the Electricity

Board in transmitting electric energy or in maintaining the transmission lines.

This court, in WP.No.40171 of 2015, S.Ruckmani and another Vs. TNEB, Chennai and three others, by order dated 19.01.2016, had held

as follows:-

The factual scenario in the instant case appears to be not in a serious dispute. The death occurred due to electrocution. The electrocution was

due to the fact that the steel rod carried by the deceased came in contact with a live High Tension wire. The high tension wire passes near the

petitioner''s house and it is stated by the respondents that there is a clear 8 feet distance between the compound wall/stairway and the wire. The

respondent pleads that no negligence can be attributed to them, since the wires are at a safe distance. However, it has to be noted that there is no

allegation that the house is an unauthorised construction or there is any deviation from the approved plan. When the High Tension wire is passing

through a densely populated area, the Board ought to have taken protective measure to avoid any untoward incident. In fact, the petitioner''s case

is that in respect of the low tension wires which are drawn for providing electricity supply to the houses protective plastic casing has been

provided. There is no explanation in the counter as to why such protection could not have been extended to the high tension lines especially when it

is admitted that the lines are passing above a corporation road.

.... the Courts have the obligation to satisfy the social aspirations of citizens and to apply the tool and grant compensation as damages in public

law proceedings .....

In this case, I hold that the respondents had a duty, an all prevailing duty to ensure that the transmission lines under their care are not the cause

for occurrences as pleaded in the instant case. I hold that a fundamental right of a citizen is infringed by negligence of the State. In this case, where

life of a 12 year old boy has been violated leading to death, absence of statutory provision for compensation is of no consequence. I hold that the

prime object of public safety by the State is to protect every individual and to compensate him/her for loss suffered. Hence, duty of care expected

of public bodies, in this case the respondents herein, is very high compared to that expected under regulated Statutes. I hold that the respondents

are liable to compensate the appellants for the loss and death of their son at a tender age of 12 years. When, as a nation, we are marching towards

the 70th year of Independence upholding our promise keeping trust with destiny, the respondents and all other officials of their ilk should get

ingrained in their body, soul and spirit that the underlying principle enunciated in the Constitution given to ourselves by ourselves is not continuation

of the Raj rule but prevalence of Swaraj. The responsibility of the respondent towards every single citizen far outweighs any defence put by them

to avoid responsibility and liability. I hold that the respondents have a duty to compensate the appellants for the unfortunate death of their son. The

point is answered accordingly.

Point No.3:- The next aspect to be decided is the quantum of compensation, for which, the appellants are entitled to. The boy was aged about

12 years. He was not a regular employee at any place. Even according to the appellants, he was a school student. He had a future ahead of him.

His prospects cannot be brushed away simply because he was living in a remote village. The factors to be considered to provide an adequate

compensation are the hopes which his parents had of him, his own dreams and quite simply the value of an Indian boy. I hold that the respondents

and through them, the State have an unquestionable duty to compensate the appellants for the unfortunate death of their son. The respondents had

put forward a false line of defence. They should have willingly come forward to accept liability and should have lent a helping hand to the surviving

parents.

In 2011-14-SCC-481 (Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and others), the Hon''ble Supreme

Court had held as follows:-

Constitutional torts - Measure of damages 99. The law is well settled that a constitutional court can award monetary compensation against the

State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in

such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for

determining the compensation payable in private tort claims are not as such applicable when a constitutional court determines the compensation in

cases where there is violation of fundamental rights guaranteed to its citizens.

In D.K. Basu v. State of W.B., a Constitution Bench of this Court held that there is no straitjacket formula for computation of damages and

we find that there is no uniformity or yardstick followed in awarding damages for violation of fundamental rights. In Rudul Sah case, this Court used

the terminology ""palliative"" for measuring the damages and the formula of adhoc"" was applied. In Sebastian Hongray case, the expression used by

this Court for determining the monetary compensation was exemplary"" costs and the formula adopted was ""punitive"". In Bhim Singh case, the

expression used by the Court was ""compensation"" and the method adopted was ""tortious formula"". In D.K. Basu v. State of West Bengal, the

expression used by this Court for determining the compensation was ""monetary compensation"". The formula adopted was ""cost to cost""method.

Courts have not, therefore, adopted a uniform criterion since no statutory formula has been laid down.

Constitutional courts all over the world have to overcome these hurdles. Failure to precisely articulate and carefully evaluate a uniform policy

as against State and its officials would at times tend the court to adopt rules which are applicable in private law remedy for which courts and

statutes have evolved various methods, such as loss of earnings, impairment of future earning capacity, medical expenses, mental and physical

suffering, property damage, etc. Adoption of those methods as such in computing the damages for violation of constitutional torts may not be

proper.

I hold that, the respondents should be made liable to a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) towards compensation for their

negligence for having failed in their responsibility as a ''State''. The appellants are entitled for interest at the rate of 6% per annum from the date of

suit till date of realisation. This amount is also commensurate if a notional income of Rs.5,000/- (Rupees Five Thousand) is fixed per month with a

further life span of 15 years, which comes to Rs.9,00,000/- (Rupees Nine Lakhs) and even if a deduction of Rs.4,00,000/- (Rupees Four Lakhs)

towards personal expenses, the amount of Rs.5,00,000/- (Rupees Five Lakhs) would be just compensation. Since the suit had been instituted by

the appellants as indigent persons, the appellants have to satisfy the conditions under which permission was granted. This point is answered

accordingly.

In view of the above facts and circumstances of the case, I hold that the reasoning given in the judgment of the trial Court are erroneous and

the judgment is liable to be set aside. It is set aside.

In the result, this Appeal Suit is allowed and the judgment and decree dismissing O.S.No.15 of 2007 dated 30.9.2009 by the learned Principal

District Judge, Pudukkottai, is reversed and O.S.No. 15 of 2007 is decreed to a sum of Rs.5,00,000/- (Rupees Five Lakhs only) together with

interest at the rate of 6% per annum from the date of suit till date of realisation, payable by the respondents/defendants. No costs. The conditions

under which the appellants were granted permission to initiate the suit and also to file the present appeal as indigent persons shall be satisfied by the

appellants. Time granted for payment is six months.